Indiana’s State Regulated Wetland Law
On July 1, 2021, amendments to Indiana’s State Regulated Wetland Law became effective. The changes are the result of SEA 389 (Public Law 160) which greatly reduced the number of non-federal wetlands regulated by the state. It is important to note the law did not eliminate protections of state wetlands; regulations governing wetlands remain at both the state and federal level. In order to confirm that a wetland is not regulated, a person seeking to impact the wetland must take certain steps.
First, they must confirm that the wetland is not a Water of the United States (WOTUS) regulated by the U.S. Army Corps of Engineers (USACE) by getting a jurisdictional determination from the USACE. Only USACE can make a definitive jurisdictional determination.
The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (the agencies) are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.
The key to implementation of the regulatory requirements (both federal 401/404 and State Regulated Wetland) for projects that add dredged or fill material to waters is the U.S. Army Corps of Engineers (USACE) determination of whether impacted waters are federally jurisdictional.
- USACE’s most recent (2008) guidance on making jurisdictional determinations (JDs) using the pre-2015 WOTUS regulatory regime
This change (reversion to pre-2015) WOTUS makes it even more imperative for project proponents to get a jurisdictional determination (JD) from the USACE to ensure the appropriate regulations are applied and correct permits/certifications are received prior to impacting waters with dredged or fill material. For JDs that identify waters of the state, coordination with IDEM is highly recommended so wetland classifications and exemptions may be verified.
If the wetland is jurisdictional and regulated by USACE, then the person must go through the 404/401 permitting processes with both USACE and IDEM prior to impacting the wetland. If not, then the person seeking to impact the wetland should confirm with IDEM through a Waters of the State Determination (WOSD) whether the wetland qualifies for an exemption under the State Regulated Wetland Law. If the wetland is not exempt, a State Regulated Wetland permit must be obtained prior to impacting the wetland.
As part of that WOSD, IDEM will confirm the classification of the wetland and if the wetland qualifies for an exemption. It is important to note that the new State Regulated Wetland Law changed the definitions of wetland classifications. IDEM will soon be releasing guidance and data sheets to assist regulators and consultants in determining a wetland’s class.
Impacting a regulated wetland without a permit could result in violation of state or federal law and subject the responsible party to penalties and fines.
Our nation's wetlands and waterways provide beautiful scenery, drinking water/groundwater recharge, and recreation value, along with many other benefits. They also provide raw materials for industry and medicine, hydroelectric power, a receptacle for wastewater, and a highway for commerce. While these uses provide great benefits to citizens, they can also alter and pollute our nation's waters and waterways. Federal permits or licenses are required to conduct many of these types of operations, including building and operating hydroelectric dams, discharging wastewater, altering flow paths, and placing fill materials into wetlands and waterways.
When a project is planned in Indiana that will impact a wetland, stream, river, lake, or other Water of the U.S., the Indiana Department of Environmental Management (IDEM) must issue a Section 401 Water Quality Certification (401 WQC). A Section 401 WQC is a required component of a federal permit and must be issued before a federal permit or license can be granted. The bulk of federal permits requiring Section 401 Water Quality Certification from IDEM are Section 404 Dredge and Fill Permits, which are issued by the U.S. Army Corps of Engineers (USACE). However, applicants for a license to operate a hydroelectric dam from the Federal Energy Regulatory Commission (FERC) must also receive Section 401 Water Quality Certification from IDEM. Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged and fill material into Waters of the United States. The basic premise of the USACE's Section 404 Regulatory program is that dredged or fill material cannot be discharged into water if the nation's waters would be significantly degraded or if a feasible alternative exists that is less damaging to the aquatic environment. Dredge and fill activities are controlled by a permit process administered by the U.S. Army Corps of Engineers and overseen by the Environmental Protection Agency (EPA).
This means that any person or company planning to discharge fill materials to Indiana wetlands or other water bodies such as streams, rivers, and lakes by filling, excavating, open-trench cutting, or mechanical clearing, must receive Section 401 Water Quality Certification authorization from IDEM and must also apply for, and receive, a federal Section 404 Dredge and Fill Permit from the USACE.
If the USACE determines that wetlands or other water features are present, but determines that they are not Waters of the U.S., then they are considered to be Waters of the State. State regulated wetlands (those wetlands not regulated under the federal Clean Water Act) are Waters of the State and are regulated under Indiana's State Regulated Wetlands law (Indiana Code 13-18-22). Impacts to state regulated wetlands require State Regulated Wetland Permits from IDEM. Again, because the federal government's jurisdiction is different than the state's, IDEM must be contacted to determine which, if any, state authorization(s) is/are needed before an applicant may legally discharge pollutants (including fill materials) to wetland, streams, rivers, lakes, and other Waters.
IDEM works closely with the U.S. Army Corps of Engineers and coordinates the permit application processes as much as possible. IDEM recommends that any potential applicant first contact the Corps to begin the application process and determine if the proposed project will impact wetlands or other regulated waters, and to determine whether or not a federal permit is required. If a federal permit is not required, IDEM can determine if a State Regulated Wetland Permit is required.
Although both IDEM and the U.S. Army Corps of Engineers regulate impacts to wetlands and other Waters of the U.S., they have different authority and jurisdictions. This is why both IDEM and the Corps need to be contacted before any discharge to or activity in a wetland, stream, river, lake, or other Water occurs.
If the USACE determines that a proposed project will require a Corps' Section 404 Dredge and Fill Permit, then the applicant must also apply for, and obtain, a Section 401 Water Quality Certification from IDEM. IDEM will review the proposed activities to determine if they will comply with Indiana law, including state water quality standards.
Applicants must demonstrate to IDEM how they are avoiding impacts to wetlands and Waters of the U.S/Waters of the State. If an applicant is unable to completely avoid impacts, they must demonstrate how their proposed project and unavoidable impacts to wetlands and other regulated waterbodies have been minimized. Applicants must provide compensatory mitigation for any remaining adverse impacts to wetlands and other regulated Waters.
IDEM will deny Section 401 Water Quality Certification and State Isolated Wetland permit applications if an applicant cannot show that their discharge(s) and impact(s) will comply with state law and may cause violations of water quality standards. As an example, IDEM may deny Section 401 WQC or an State Regulated Wetland Permit if an application is incomplete, if an impact can be avoided or is deemed unnecessary, or if an applicant's proposed compensatory mitigation will not offset adverse impacts to water quality. An IDEM Non Rule Policy Document, Reasons for Denial (NRPD-Water-011, available on the IDEM Nonrules Policies page), was put into effect on April 13, 2007. A person may not proceed with their project until he or she has received a Section 401 Water Quality Certification and/or State Regulated Wetland Permit (or other authorization) from IDEM. from IDEM.
IDEM encourages you to read more about our Section 401 Water Quality Certification Program and the Indiana State Regulated Wetlands Permitting Program.
State Regulated Wetlands Permitting Program
- Frequently Asked Questions (FAQs)
- Project Planning Tips
- Early Coordination
- Application Materials
- Guidance Documents and Resources
- Overview of IDEM State Regulated Wetland Permit Types
- Understanding State Regulated Wetland Exemptions
- Working Without IDEM Authorization
- How to Report a Complaint or Violation to IDEM